Northern Ireland, discrimination and fair employment: Scott

In Scott v Stevenson & Reid Ltd [2017] 82/15 FET 2577/15, Ms Scott worked at the Prince Regent Road, Belfast, branch of Stevenson & Reid Ltd, a firm which supplies bathrooms and heating systems. She was the only Roman Catholic working in the showroom, though Mr Kevin Kerr, a Roman Catholic director, was also based at the premises. She claimed that she had been constructively unfairly dismissed and had suffered discrimination on the basis of religion and/or political opinion, harassment on the ground of her religious belief and/or political opinion and discrimination by victimisation after her line-manager had shouted a Republican slogan at her during an altercation [2].

The background

In 2013 the showroom became a boutique and she had become the boutique manager. Her duties included responsibility for the boutique’s personnel and profitability [4(5) & (6)].  The showroom held a weekly credit meeting on Friday afternoons; and on the morning of Friday 31 July 2015 she e-mailed her superior to ask if she could be excused from that afternoon’s meeting because she was under extreme pressure. He replied by e-mail that she would not have to attend if she could persuade her line-manager, Mr Sam McCammond, to deputise for her [4(9) & (10)]. Mr McCammond, in his own words, was “not one bit fucking happy!” at this [17] and ended an altercation with Ms Scott by shouting, “I am fed up covering for you. You think of no one but yourself. This will not happen again. Tiocfaidh ar lá” [10]: “Our day will come” – a slogan used in Republican circles.

Mr McCammond subsequently explained to the Tribunal that he had used the phrase to express his frustration but that he did not have any sectarian, religious or political affiliations. He accepted, however, that the phrase was inappropriate. [4(17) to 4(21)]. However, Ms Scott was anxious and upset about the incident throughout the weekend, believing that “tiocfaidh ar lá” was directed at her because of her religious background and perceived political opinion, with the intention of causing her offence [4(24)].

Complaints then emerged about the standard of Ms Scott’s work [4(16-21)]. The Tribunal was clearly unhappy about the procedures followed in assessing them:

“The matter of the complaints is very unsatisfactory. Most of them allegedly occurred months and years before August 2015. Incredibly the details of the complaints were never sought or recorded. The supporting letters provide little support. Some of the complaints involve other persons about whom the respondent did nothing. Most disturbing of all is that the respondent has not provided any explanation why historic complaints resurfaced in August 2015. The suspicion before the Tribunal is that the complaints were resurrected by the respondent to use against the claimant. [4(21)]”

In the end, she resigned.

The judgment

The Tribunal found for Ms Scott. On the issue of discrimination, it held on the basis of the evidence that the ground for using the phrase “tiocfaidh ar lá” was the claimant’s religion or political opinion [40] and that it was “clearly less favourable treatment” [41]. But the Tribunal added that even if it was wrong in that conclusion, by applying Article 38 of The Fair Employment and Treatment (Northern Ireland) Order 1998 there was a prima facie case of discrimination on the ground of religion or political opinion. The incident of 31 July 2017 and the use by Mr McCammond of language with a sectarian significance shifted the burden to the respondent and

“The respondent has not discharged the burden of proving, on the balance of probabilities, that the treatment (saying “tiocfaidh ar lá”) was in no sense whatsoever on the ground of religion or political opinion since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive” [42].

Mr McCammond had committed an act of discrimination on the ground of religion or political opinion against Ms Scott; and Stevenson & Reid Ltd was vicariously liable for the act of discrimination of one its employees against her [43 & 44].

On the harassment claim, the Tribunal was satisfied that Mr McCammond had been guilty of harassment within the terms of Article 3A of the Fair Employment and Treatment (Northern Ireland) Order 1998 and that Stevenson & Reid Ltd was again vicariously liable [51]. Finally, the firm had failed to demonstrate that the treatment meted out to Ms Scott was in no sense whatever on the basis of her religion or political opinion [65] and, accordingly, the Tribunal was satisfied that it had discriminated against her by way of victimisation [66].

In addition to a basic award and compensation for her loss of statutory rights, she was awarded £15,000 for injury to feelings.

Cite this article as: Frank Cranmer, "Northern Ireland, discrimination and fair employment: Scott" in Law & Religion UK, 30 October 2017, http://www.lawandreligionuk.com/2017/10/30/northern-ireland-discrimination-and-fair-employment-scott/

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